B-147801, JAN. 11, 1962

B-147801: Jan 11, 1962

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SINCE YOUR BID WAS THE HIGHEST RECEIVED YOU WERE AWARDED A CONTRACT FOR THE PURCHASE OF ITEM NO. 15. WHICH WAS DESCRIBED IN THE INVITATION AS FOLLOWS: "MOWER. THAT THE LAWN MOWERS WERE COMPLETELY USELESS AND INCAPABLE OF REPAIR. WAS FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT ON NOVEMBER 16. YOUR CLAIM WAS DISALLOWED. ALL PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS" WITHOUT EXPRESS OR IMPLIED GUARANTY OR WARRANTY OF ANY KIND. IF YOU WERE NOT WILLING TO ASSUME THE RISK OF A VARIANCE BETWEEN THE ACTUAL CONDITION AND THE DESCRIPTION OF THE PROPERTY. YOU SHOULD NOT HAVE SUBMITTED A BID WITHOUT THE BENEFIT OF AN INSPECTION. IT IS EVIDENT. THAT YOU HAD ACTUAL NOTICE OF THE FACT THAT THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY BEING SOLD UNDER ITEM NO. 15 WAS NOTHING MORE THAN A MERE STATEMENT OF OPINION.

B-147801, JAN. 11, 1962

TO MR. F. L. KERBER, DURBIN DURCO INC.:

YOUR LETTER OF DECEMBER 7, 1961, REQUESTS REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED DECEMBER 1, 1961, WHICH DISALLOWED YOUR CLAIM FOR $50, THE AMOUNT PAID BY YOU FOR TWO LAWN MOWERS UNDER ARMY CONTRACT NO. DA/S/09 -030-QM.

BY SALES INVITATION NO. 09-030-S-61-31, THE ATLANTA GENERAL DEPOT, U.S. ARMY, FOREST PARK, GEORGIA, SOLICITED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF CERTAIN MISCELLANEOUS SURPLUS PROPERTY. IN RESPONSE THERETO YOU SUBMITTED A BID OF $25 EACH ON TWO LAWN MOWERS UNDER ITEM NO. 15. SINCE YOUR BID WAS THE HIGHEST RECEIVED YOU WERE AWARDED A CONTRACT FOR THE PURCHASE OF ITEM NO. 15, WHICH WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"MOWER, LAWN, SELF-PROPELLED, 1 CYL., BRIGGS AND STRATTON GASOLINE ENGINE MOD. 23AFB, TORO MFG. CO. MOD. 31 GRASS KING, SER. NUMBER 648686 AND 625635. USED, MAJOR REPAIRS REQUIRED. OUTSIDE STORAGE. UNIT COST $329.00. TOTAL COST $658.00. CODE 3750. WEIGHT 300 LBS (EST.)"

AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MATERIALS, YOU INFORMED THE CONTRACTING OFFICER BY LETTER DATED APRIL 14, 1961, THAT THE LAWN MOWERS WERE COMPLETELY USELESS AND INCAPABLE OF REPAIR, AND REQUESTED THAT THE PURCHASE PRICE BE REFUNDED. THE CONTRACTING OFFICER DENIED YOUR CLAIM BY LETTER DATED APRIL 26, 1961, AND ADVISED THAT IF YOU WISHED TO APPEAL, YOU SHOULD ADDRESS A REQUEST FOR REFORMATION OR RESCISSION OF THE CONTRACT TO THE COMPTROLLER GENERAL AND DELIVER IT TO THE CONTRACTING OFFICER. YOUR LETTER OF OF MAY 31, 1961, ADDRESSED TO THE COMPTROLLER GENERAL AND REQUESTING RELIEF, WAS FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT ON NOVEMBER 16, 1961. AS INDICATED IN OUR SETTLEMENT PF DECEMBER 1, 1961, YOUR CLAIM WAS DISALLOWED.

UNDER ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION, WHICH YOU AGREED TO WHEN YOU SUBMITTED YOUR BID ON ITEM NO. 15, ALL PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS" WITHOUT EXPRESS OR IMPLIED GUARANTY OR WARRANTY OF ANY KIND, INCLUDING THE CONDITION AND DESCRIPTION OF THE PROPERTY. THEREFORE, IF YOU WERE NOT WILLING TO ASSUME THE RISK OF A VARIANCE BETWEEN THE ACTUAL CONDITION AND THE DESCRIPTION OF THE PROPERTY, YOU SHOULD NOT HAVE SUBMITTED A BID WITHOUT THE BENEFIT OF AN INSPECTION. SEE DADOURIAN EXPORT CO. V. UNITED STATES, 291 F.2D 178.

IT IS EVIDENT, THEREFORE, THAT YOU HAD ACTUAL NOTICE OF THE FACT THAT THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY BEING SOLD UNDER ITEM NO. 15 WAS NOTHING MORE THAN A MERE STATEMENT OF OPINION. MOREOVER, WHILE THE DESCRIPTION OF THE PROPERTY IN QUESTION MAY NOT HAVE BEEN ENTIRELY ACCURATE, YOU DO NOT ALLEGE AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT IT WAS INTENTIONALLY MISDESCRIBED IN THE BID INVITATION, OR THAT THE GOVERNMENT AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE SALES TRANSACTION.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE PURCHASE PRICE OF ITEM NO. 15 ON ARMY CONTRACT NO. DA/S/09-030-QM. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 1, 1961, IS SUSTAINED.